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The application of law

The term law has two different meanings.


Firstly, law means all normative acts adopted by the state authorities (the
Parliament, the Government, the Ministries and the local administrative
authorities). This is the wide meaning of the term “law”.
Secondly, law means only the normative act adopted by the legislative
power, namely the Parliament.
In relation to the application of law, we should take into account three
coordinates, as follows:
- the application of law in time;
- the application of law on the territory;
- the application of law to persons.

The application of law in time

During the years, the existing laws are replaced by others, because the
State is interested to regulate in a different way certain social relations, in order
to correlate the law and the economic and social realities.
Therefore, it is very important to establish the period of time during which
a law must be applied, meaning the moment when the law begins its application,
as well as the end of its application.
Actually, the law begins its application from the moment of its entering
into force. As a consequence, the law becomes compulsory and it must be
applied and observed by everybody starting from its entering into force.
According to the Romanian Constitution, the law enters into force three
days after its publication in the Official Monitor of Romania or on a further date
expressly mentioned within the law itself.
Starting from its entering into force, the law is presumed to be known by
everybody. Indeed, nobody can plead his ignorance of the law in front of the
judge.
The final moment of the application of law is the moment of its
abrogation.
The abrogation (the repeal) means the future abolition or elimination of
the law.
The abrogation may be express or implicit (tacit).
1. The express abrogation occurs when the legislator expressly provides that a
certain law is repealed.
Furthermore, the express abrogation may be direct or indirect.
The direct express abrogation occurs when the new law mentions
directly the abrogated law or the abrogated articles of law. For example: “on the
date of entering into force of the present law, the Law no… is abrogated
(repealed)”.
The indirect express abrogation occurs when it is provided that the laws
or the articles that are contrary to the new law are abrogated. Thus, we generally
use the expression: “All contrary (conflicting) legal provisions are abrogated
(repealed)”.
2. The tacit (implicit) abrogation occurs whenever the new law contains legal
provisions which are incompatible with the previous law, without mentioning
expressly that the previous law is abrogated.

The principles and the exceptions concerning the application of law in time

Generally, the law must be applied between the moment of its entering
into force and the moment of its abrogation.
However, the juridical relations may produce their effects during periods
of time when different laws apply, especially because in time the existing laws
may be replaced by other legal provisions.
As a consequence, we should determine the applicable law to a particular
legal relation, on a certain moment in time, taking into account the following
principles:

1. the principle of the non-retroactivity of law.


This principle states that the law regulates only the circumstances, the
situations occurred after its entering into force. The new law cannot regulate the
past situations, meaning those occurred before its entering into force.
Thus, article 6 of the Civil Code provides: “The law is applicable as long
as it is in force. It has no retroactive power”.
In the same way, the Romanian Constitution provides: “The law disposes
only for the future, except for the more favorable criminal law”.
As a consequence, according to the principle of the non-retroactivity of
the law, the following rules must be observed:
a. the new law does not regulate the juridical relations which were created,
modified or extinguished before its entering into force;
b. the new law regulates the following:
- the juridical situations which are created, modified or extinguished after
its entering into force;
- the future effects of juridical relations created prior to its entering into
force.
However, there is an exception to the principle of the non-retroactivity of
the law, which is expressly provided by the Romanian Constitution. Thus,
according to the Romanian Constitution, the more favorable criminal law has
retroactive power.

2. the principle of immediate application of the new law.


This principle means that a prior normative act cannot regulate the
situations occurred after its abrogation, because the new law must be applied
immediately, starting from its entering into force.
As a consequence, the future situations will be regulated by the new law.
However, there is an exception to this principle, which is called the
ultra-activity of the law. According to this exception, even after the entering
into force of the new law, the prior law may be applied to certain juridical
situations which are expressly provided by the new law.

The application of the law on the territory

This application of the law on the territory is governed by the principle of


the territoriality of law, which is expressly provided by article 7 Civil Code.
Thus, according to this principle, generally the Romanian law is applied on the
Romanian territory.
However, the application of this principle depends on the following
elements:
- the extent of competence of the state bodies which have adopted the legal
provisions;
- the existence of juridical relations having a foreign element.
Therefore, taking into account the extent of competence of state
authorities, the normative acts adopted by the Parliament, the Government and
the authorities of central public administration are to be applied on the whole
territory of Romania. Nevertheless, the normative acts adopted by the local
administrative authorities (the local council and the county council) are to be
applied only on the territory of the county, the town or the village.
On the other hand, the juridical relations having a foreign element
create a conflict between different laws belonging to different states. As a
consequence, this problem of conflict of laws is to be solved by the legal rules of
international private law. Therefore, according to these legal rules, the
Romanian law may be applied outside the territory of Romania or a foreign
law may be applied outside its territory, namely on the territory of
Romania. However, it should be mentioned that in such a case, the application
of a foreign law on the Romanian territory is possible in accordance with the
provisions of the Romanian legal rules of international private law.

The application of law to persons

As mentioned before, the beneficiaries of legal rules are the natural or


legal persons. The law applies equally to all its beneficiaries, to all persons,
regardless of their sex, nationality and race. As a consequence, all persons are
equal in front of the law.
However, it does not mean that any law, any normative act applies in the
same way and within the same limits to all persons. From this point of view,
there are laws with general application (such as the Constitution or the Civil
Code) and laws which apply only to specific categories of persons (such as for
example the Law no. 31/1990 on companies, republished, amended and
completed).
In addition, the application of law is always national, because the law
applies on the national territory. It means that the national law is to be applied on
the national territory to all the persons who are within the borders of the state at
a particular moment. As a consequence, the Romanian law applies not only to
the Romanians, but also to the foreigners, during their stay in Romania.

Business Law

Business Law contains all the legal rules that belong to different branches
of public or private law, and which are applicable within the business relations.
Thus, Business Law regulates mainly the following legal relations
concerning the performance of economic activities:
- legal relations of public law established between the state and the public
authorities, on one hand, and the participants to business relations, on the other
hand, concerning, for example, authorizations of functioning, taxes and other
charges, the crimes and criminal offences concerning economic activities;
- legal relations of private law established between the participants to business
relations or arising from the performance of economic activities, such as, for
example, different types of contracts or juridical acts, the ownership right and
the goods, the labor relations and so on.
The juridical relation

As a definition, the juridical relation is the social relation regulated by


a legal rule.
Within private law, any juridical relation is defined by the juridical
equality of the parties.
Each juridical relation has three elements of structure, as follows:
1. the parties or the subjects of the juridical relation, meaning the natural or
legal persons as owners of rights and obligations;
2. the content of the juridical relation, which includes the rights and
obligations of the parties;
3. the object of the juridical relation, meaning the behavior of the parties, the
actions or inactions that the parties may exercise, must do or are not allowed to
do.

The parties to the juridical relation

The parties of the juridical relation are the subjects of law, namely the
owners of subjective rights and obligations. These parties may be natural
persons or legal persons.

The natural person

As a definition, the natural person is the individual subject of law,


meaning any human being, any individual as owner of rights and obligations.
The participation of the natural person to juridical relations, meaning his quality
of subject of law, depends on the legal capacity of the person in question.
The civil legal capacity includes the following two parts:
- the abstract capacity;
- the concrete capacity.

The abstract capacity

As a definition, the abstract capacity means the possibility of the natural


person to have rights and obligations. The abstract capacity follows the existence
of any human being because it expresses the quality of subject of law and it
allows the participation of the individual to the juridical life.
As a consequence, the abstract capacity of any natural person begins
at the moment of his birth and ends when the natural person dies.
Concerning the starting moment of the abstract capacity, the general
rule is the date of the birth, but the law also provides an exception to this
rule. Thus, the Civil Code recognizes an anticipated abstract capacity to the
conceived child, who is not yet born, under the condition to be born alive.
However, according to article 36 Civil Code, this anticipated abstract capacity
refers only to the possibility to have rights (it may be applicable in the field of
inheritance).
Concerning the final moment of the abstract capacity, it is the
moment of the death of the natural person.
As a consequence, if the death is physical, meaning there is a body, the
abstract capacity ends on the date of death as mentioned by the death certificate.
If the death is not physical, because the person had disappeared, the law
provides a special procedure, the procedure for the judicial declaration of
death. This procedure is necessary in order to clarify the legal situation of the
person who has disappeared during a long period of time, because it is
impossible to know any more if the person is still alive. This clarification is
necessary, in the first place, to the family of the missing person, but it may also
be useful to other persons having juridical relations with the missing person,
such as his creditors.
Generally, following the application brought by any interested person, the
missing person may be declared dead, by judgment of the court of law, after
two years from the date of the last news of the person in question. As an
exception, the persons who had disappeared during wars, accidents or other
exceptional circumstances which may lead to the conclusion that the person is
no longer alive, may be declared dead after a period of six months from the
date of their disappearance.
However, in all cases, the judgment which declares the death must
mention the date of the death, which is also the date when the abstract capacity
of the person ends.
In this respect, according to the provisions of article 53 of Civil Code, the
missing person is considered alive until the judicial declaration of his death,
by definitive judgment.